Overland v. Jackson

IN BANC.

AFFIRMED. This is an appeal from a decree and judgment of the Circuit Court in favor of the plaintiffs in a cause submitted on the pleadings and an agreed statement of facts. The following summary, we believe, fairly portrays the situation thus presented. One Julia E. Jackson, prior to her marriage to C.C. Jackson, had acquired the lands concerning which this cause was instituted. The plaintiffs are her children by a prior marriage; both are adults. Upon her death, in the year 1925, C.C. Jackson was appointed administrator of her estate, and later petitioned the County Court to set aside to him as a homestead the aforementioned property. The deceased, and the said petitioner, had made their home upon this land. September 24, 1925, the court made an order allowing the petition; thereupon, Jackson continued to live upon the premises, and claimed them as his own. August 11, 1927, he died, still claiming ownership of this land. The defendants, all adults, are his children by a previous marriage; they assert ownership of the property as his heirs. The rental value of the land is $15 a month. The decree of the Circuit Court was in favor of the plaintiffs; it held as void the order of the County Court, and entered a judgment in plaintiffs' favor for $500, the stipulated rental value of the premises for the period it was withheld from them.

The defendants seek to uphold the order entered by the County Court by virtue of Section 1234, Or. L., as amended by 1923 Session Laws, Chapter 263. The plaintiffs rely upon Section 225, Or. L.

The law applicable to the situation presented to us appears more complex and difficult upon hasty examination than it resolves itself into upon mature reflection. Yet it is difficult to state the situation as simply as it deserves. Section 1234, Or. L., came into our laws as a part of the enactment of the Code of Civil Procedure of 1862. It there appears as a portion of Title IV, Chapter 15. Chapter 15 is entitled "Proceedings in Probate Matters," and Title IV bears the heading "The Support of the Widow and Minor Children." The first section under Title IV authorizes provision for the support of the widow and minor children "until administration of the estate has been granted and the inventory filed"; the next section, which is now codified as Section 1234, Or. L., subject to a few minor changes which we need not notice, grants authority to the court upon the filing of the inventory, to set apart to the widow or minor children "all the property of the estate by law exempt from execution." We shall review no further the enactments of 1862; the reference already made has served the purpose of calling attention to the fact that the legislative intent was not to determine the nature of the homestead, or define the extent of the exemption privilege, but to make provision for the support and maintenance of the widow and minor children. The law thus remained until the 1919 assembly of our legislature (we shall later review the changes wrought at that session). However, until the 1919 Session, the Probate Courts, by virtue of the aforementioned enactments of 1862, set apart the exempt property, including the homestead, to the widow and minor children upon their motion. For an illustrative case see Wycoff v. Snapp,72 Or. 234 (143 P. 902).

It will be observed that what is now Section 1234, authorizes the court to set apart to the widow or minor children "all the property of the estate, by law exempt from execution." Exempt property is vast in its variety; it includes the uniforms, arms, equipment and horses used by the militiamen in the National Guard; a burial lot, a quantity of books, pictures and musical instruments, $100 worth of wearing apparel, the tools, implements, team, library, etc. used in the earning of a living, $50 worth of fowl, $300 worth of livestock, family provisions, a quantity of fuel, a church pew, a pension, certain firearms owned by the citizen, all of the property of the state, county and city, the family homestead. Thus, it appears, that Section 1234 has application to a general class of property which includes not only a homestead, but also a variety of other articles ranging all the way from a library, to a coop, containing $50 worth of fowl.

After this had remained the law of this state for fifty-seven years (subject to a nonconsequential amendment to Section 1234, by 1919 Session Laws, Chap. 37, Art. II, § 2), the legislature saw fit to take the family homestead out from the general class of property dealt with by Section 1234, and deal with it specially; it, therefore, enacted Chapter 112, Session Laws 1919. Sections 5 and 6 of this act are now respectively Sections 225 and 226, Or. L. 1920. This enactment concerns itself with homesteads only. Briefly summarized, its provisions may be stated thus: Section 1 creates a homestead exemption; Section 2, fixes the minimum size and value below which the homestead cannot be reduced upon execution sale; Section 3 provides, that mechanics and purchase price liens are superior to the exemption privilege; Section 4 defines the manner of claiming the exemption; Section 5, which is now Section 225, Or. L., makes provision for the descent of the homestead in accord with the laws of descent and distribution when its owner dies intestate; Section 6, which is now Section 226, Or. L., provides, that the owner may dispose of his homestead by testament. In each instance provided for by Sections 225 and 226, the recipient receives the benefit of the exemption privilege, provided he is related to the deceased within the degrees of consanguinity or affinity mentioned in those sections. The exemption privilege is subordinated only to mortgage and mechanics' liens, and to the expenses of the last sickness, funeral and probate charges. The act expressly "frees" the estate, thus passed, of all other "claims"; the provision just mentioned, is persuasive evidence, that the legislature intended that the order provided for in Section 1234 should no longer constitute any sort of claim upon the property. Thus it will be seen, that while Section 1234, Or. L., concerns itself with a vast variety of property, Sections 225 and 226, Or. L., are a part of a code which has reference to a specific type of exempt property, the homestead, and provide for its devolution in a manner different than that indicated by Section 1234. Not only so, but they attach conditions, exactions and exemptions upon the estate in the possession of the new owner which are entirely different from that effected by Section 1234, Or. L. It was these circumstances which caused this court, in Leet v. Barr,104 Or. 32 (202 P. 414, 206 P. 548), to rule thus:

"The provisions contained in these two sections are positive and imperative, and are not doubtful in meaning or ambiguous, and it is the duty of the court to give effect to them. These provisions are also particular, special and specific in their directions, and therefore would prevail over the general provisions contained in section 1234 O.L., if the two acts had been passed at the same time, as it cannot be supposed that the legislature would have inserted in sections 225 and 226 the special, particular and specific provisions contained therein if it had intended that the general provisions of section 1234 O.L. should control. If it were not for the provisions contained in sections 225 and 226, O.L., a homestead, being exempt from execution, would fall within the operation of section 1234 Or. L., and would be disposed of as other exempt property of an estate by being set apart as the separate property of the widow or husband of the deceased. The provisions of section 1234, Or. L., are wholly inconsistent with those of sections 225 and 226, and, if disposed of under one, a wholly different disposition of a homestead would be made than if disposed of under the other. In deciding which statute should prevail if both had been enacted at the same time, we would be compelled to follow sections 225 and 226, Or. L., because specific provisions relating to a particular subject must govern in respect to that subject as against general provisions in other parts of the law which might otherwise be broad enough to include it."

The decision concluded by holding that Sections 225 and 226 governed the devolution of the homestead.

Should we deem it necessary to buttress the rules of statutory construction applied in the foregoing decision with citations from other jurisdictions, we could readily do so. We deem the conclusion reached in Leet v. Barr, supra, sound, and adhere to it. The statute construed is one that governs the title to real property; the decision once having been announced and applied, comes within the doctrine of stare decisis, and should not be lightly cast aside. Carpenter, Stare Decisis Law Reform, VII Oregon Law Review, 31. Since we abide by it, the result is that Section 1234 confers upon the County Court, authority to issue an order setting apart for the husband, widow or minor children, all of the exempt property of the estate, except the homestead; the probate court is without authority to dispose of the latter because Sections 225 and 226 provide for a different disposition of it. As previously pointed out, these sections provide that if no will disposes of the homestead, it shall descend by virtue of the statutes of descent and distribution; but if the deceased left a will, and in it provided for the devise of his homestead, the devisee shall take it. As we have observed before, in each instance of death, either testate or intestate, the exemption privilege, which protected the owner during his lifetime, is transferred to his relative upon the latter coming into possession.

Thus the law was well settled up to the 1923 Session at least. Other of our decisions, which applied these statutes areIltz v. Krieger, 104 Or. 59 (202 P. 409, 206 P. 550),Ferguson v. Holborn, 106 Or. 566 (211 P. 963), Slattery v. Newell, 115 Or. 22 (236 P. 268), and Glover v. Glover,108 Or. 61 (215 P. 990). The 1923 assembly of the legislature amended Section 1234: 1923 Session Laws, Chapter 263. This enactment consisted of the re-enactment of Section 1234, Or. L., in exactly its original phraseology; but it added the following:

"* * And that all orders heretofore made and entered of any court or judge thereof setting apart to any husband, widow or minor children of the deceased, any homestead under and by virtue of the provisions of section 1234, Oregon Laws, be and the same are hereby ratified, confirmed, validated and legalized in so far as such orders might or could have been lawfully made under the provisions of section 1234, Oregon Laws, the same being chapter 37 of General Laws of Oregon, 1919."

It will be observed that the addition consisted of a mere curative clause. It will be remembered that Sections 225 and 226, Or. L., became a portion of our laws in the 1919 session of the legislature; at the same session, what is now Section 1234 was slightly amended, the principal change consisting of adding the widower as an additional possible beneficiary of the probate court's order. The fact that what is now Section 1234 was thus enacted at the 1919 session, when Sections 225 and 226 came into our laws, received some comment in Leet v. Barr; the court there, in announcing its conclusion that Sections 225 and 226 prevailed over Section 1234, pointed out that Sections 225 and 226 were enacted at a later day in the legislative session than Section 1234, and assigned to that circumstance some persuasive effect. This portion of the decision in Leet v. Barr has caused the appellant to call our attention to the fact that Section 1234 has now achieved an enactment subsequent to Sections 225 and 226, through its re-enactment in the 1923 session. It is argued, that we should infer that through its later re-enactment the legislature intended that Section 1234 should prevail over Sections 225 and 226. It would be odd if the legislature adopted such an unusual means for repealing, relegating, or impairing Sections 225 and 226. If such was the legislative purpose, a repealing statute would have been the proper instrumentality to apply upon Sections 225 and 226. If the legislative intent was to confer authority upon the probate court to set aside homesteads under the provisions of Section 1234, it could readily have accomplished its purpose by specifically mentioning the homestead. Since it did neither, but contented itself with the addition of a curative clause, we must assume that its intention was none other than to cure some titles affected by orders previously made under Section 1234.

As the situation now exists, the statement of the rules of statutory construction announced in Leet v. Barr, applicable to the apparent conflict of Sections 225 and 226 upon the one hand, and Section 1234 upon the other, remain as pertinent now as they were when that decision was announced. The sole and only question before us is whether the re-enactment of Section 1234 at the 1923 legislative assembly should cause us to depart from the result announced in Leet v. Barr. What we have already said will suffice to dispose of appellants' contention.

Before concluding it might be well to point out that there is still another rule of statutory construction, frequently applied in cases similar to ours, which may be stated thus: when a statute has been construed by the court of last resort of the state and is later re-enacted it is deemed that the legislature has adopted the court's construction unless the contrary purpose is clearly shown by the language of the act: 25 R.C.L., Statutes, p. 1075, § 297; 36 Cyc., Statutes, p. 1152; Lewis' Statutory Const. (2 ed.), § 399. Sections 225, 226 and 1234, Or. L., and their precedents, have been construed and applied by this court many times. We have already mentioned Leet v. Barr. A companion case to it is Iltz v. Krieger, supra. Here the court held that inasmuch as the death of the original homestead owner occurred before the enactment of the 1919 act, the principles of law announced in Wycoff v. Snapp. 72 Or. 234 (143 P. 902), and in In re Frizzell's Estate, 95 Or. 684 (188 P. 707) should be applied, and that the homestead should be set aside to the widow under Section 1234, Or. L. Prompted by the rule of statutory construction just mentioned, we deem it proper to infer, that when the legislature embodied into 1921 Session Laws, Chapter 263, the precise words of Section 1234, Or. L., it intended that its words should be construed as we had construed them in the cases of Leet v. Barr, supra, and Iltz v.Krieger, supra; and this includes the inference that it intended that those words, as re-enacted, should bear the same relationship to all existing law as they bore in their old form in Section 1234, Or. L.

There has been called to our attention 1927 Session Laws, Chapter 345. Neither side contends that this case is governed by that act; but it is argued that it provides material which we may employ in determining the legislative intent. We shall leave the construction of that act until such future time as a set of circumstances is submitted to us that call for its application. Nor does this case require any determination of the quantity of estate passed to the beneficiary under the orders provided for by Section 1234, Or. L. Since the probate court was without authority to dispose of the homestead by its order, we are not called upon to determine what effect attaches to the order when it is made.

The conclusion to be drawn is that under Section 225, Or. L., the land in question upon the death of Julia E. Jackson, descended to her heirs, these plaintiffs, and the County Court was without jurisdiction to make the order the defendants rely upon. We notice that the judgment permits the plaintiff to recover rent from the defendants for a period beginning with the occupancy of C.C. Jackson; but, we assume, that the latter's heirs should be chargeable with rent only for the period that they were in possession, which began August 11, 1927. With this modification, the decree and judgment of the Circuit Court is affirmed. Costs to neither party.

AFFIRMED.

BROWN, RAND, and BELT, JJ., concur.

BEAN, J., dissents.